This agreement (this “Agreement”) is made effectice as of (the “Effective Date”), between CyberLynk (“CyberLynk”) and Customer governs provision of CyberLynk’s Colocation service (the “Service”). This Agreement is effective as of the moment Customer (a) indicates assent through the CyberLynk Website or (b) establishes an account with CyberLynk or uses the Service or any element thereof. CyberLynk may revise this Agreement from time to time by posting a new version hereof on the CyberLynk Website. Continued use of the Service constitutes acceptance of such revisions to this Agreement.
RECITALS
- CyberLynk operates a network of telecommunications equipment to facilitate the transmission of data between public and private networks, and Customer wishes a connection to the CyberLynk Network, as defined below;
- Customer wishes CyberLynk to provide access and connection to the Global Internet, as defined below, through the CyberLynk Network, and CyberLynk is willing to provide such services on the terms and conditions set forth below;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Definitions
a) “Access Point” shall mean the CyberLynk POP, as set forth in Exhibit A.
b) “CyberLynk Network” shall mean the communications network consisting of telecommunications lines and equipment between an Access Point(s) and the Global Internet.
c) “DNS” (Domain Name Service) shall mean the process of translating a “URL” (Uniform Resource Locator) to an assigned “IP” (Internet Protocol) address. An IP address may identify a web site, e-mail address, Telnet connection or nodes in a Customer’s network.
d) “Facility” shall mean the site at which CyberLynk houses its Access Point or telecommunications and computer equipment which comprises the CyberLynk Network, and the site where Customer may, upon CyberLynk’s written approval, connect its server(s) to the CyberLynk Network.
e) “Global Internet” shall mean a communications network consisting of telecommunications lines, routers, servers and like equipment, other than that which comprises the CyberLynk Network, all of which conforms to TCP/IP and other Internet communication protocols to facilitate the transmission of data between public and private networks.
f) “Point of Demarcation” shall mean the point at which CyberLynk accepts or hands off data to another network of telecommunication line(s) and equipment irrespective of whether such network is public or private.
g) “Service” or “Services” shall mean those services provided by CyberLynk to enable access to the Global Internet as described in Section 2 hereof and/or set forth in Exhibit A of this Agreement.
h) “Traffic” shall mean data destined for, or received from, Customer, or Customer’s clients or other end users. More specifically, Traffic shall refer to the number of megabytes transmitted from Customer’s server through the CyberLynk Network each calendar day.
Service and Traffic
a) CyberLynk agrees to house Customer’s server(s) at CyberLynk’s Facility and to provide Customer with a connection to the Global Internet from CyberLynk’s Access Point subject to the terms and conditions set forth in this Agreement.
b) CyberLynk agrees to provide Customer with a non-exclusive data connection to CyberLynk’s LAN (“Local Area Network”). The data rate of said connection is set forth in Exhibit A attached hereto and made a part of this Agreement by reference.
c) CyberLynk agrees to provide a non-exclusive routing port at the Access Point for Customer’s connection to the Global Internet.
d) Customer shall provide or install an appropriate interface to connect to CyberLynk’s LAN. Appropriate interfaces are described in Exhibit A.
e) CyberLynk will provide primary DNS service for Customer. CyberLynk will also provide secondary DNS service unless otherwise notified by Customer.
f) CyberLynk agrees not to restrict Customer’s or its client’s use of the Global Internet based on content or subject matter of the Traffic, unless required to restrict such usage under applicable law, court order or government regulation.
Fees
a) Customer shall pay CyberLynk the fees set forth in Exhibit A. Fees are based in part on Traffic passing from Customer’s equipment to CyberLynk’s LAN which CyberLynk will monitor. Fees may be adjusted upward or downward by CyberLynk on an annual basis upon sixty (60) days prior written notice to Customer.
b) All recurring fees set forth in Exhibit A shall be invoiced on the first day of each calendar month. In the event Service begins mid-month, fees will be prorated accordingly. All invoices shall be due on the tenth (10th) calendar day. Any amounts received after the tenth calendar day shall be subject to late fee charges. The late fee charges will be calculated based on 1.5% per month of the unpaid amount (18% annually).
c) Any taxes based upon this Agreement or the Service(s) provided, exclusive of franchise taxes or taxes based upon the income of CyberLynk shall be paid by Customer.
Term and Termination
a) This Agreement shall have an initial term as set forth in Exhibit A. Such term shall begin the day CyberLynk Service(s) are provided to Customer. This Agreement will automatically be renew for month-to-month periods unless one party notifies the other party of its intention to terminate this Agreement in writing as described below.
b) This Agreement may be terminated by either party for any reason during the initial term, or during any renewal term upon written notice to the other party at least thirty (30) days prior to the expiration of the then current term.
c) Either party may terminate this Agreement immediately upon the occurrence of any of the following events: (i) either party commits a material breach of this Agreement; or (ii) one party losses its authority, permanently or temporarily, to provide the services described in this Agreement. In either event, neither party shall have any further obligation to the other party, except that Customer will continue to be responsible for fees, costs and Services contracted for under this Agreement.
d) Termination prior to term expiration as specified in Exhibit A will be subject to termination charges as follows:
The contracted monthly fee will be increased to the closest term to the actual term of service provided. The Customer will pay the difference between fees already paid, and the total of fees calculated at the new rate for the actual term of service provided. All deposits shall be forfeited.
e) If Customer fails to pay for Service(s) in accordance with Section 3 above, and notwithstanding Section 4c. above, CyberLynk may issue Customer a payment default notice in writing to Customer to cure the default within the time period specified in the notice, which shall not be less than ten (10) calendar days. If the payment default is not cured within the specified time period, CyberLynk may then discontinue performance, terminate this Agreement and pursue any other remedies available at law or in equity.
Technical and Operational Matters
a) CyberLynk will use reasonable efforts to keep Traffic flowing from the Access Point through CyberLynk’s Network. CyberLynk will also use reasonable efforts to have CyberLynk’s Network available 24 hours each day, seven days each week; provided that CyberLynk may schedule reasonable downtime to conduct necessary maintenance or facility improvements. CyberLynk will use reasonable efforts to limit downtime for maintenance purposes to four (4) hours. However, Customer acknowledges that some maintenance services may take longer than four (4) hours to complete. Whenever reasonably practical, CyberLynk will notify Customer of such downtime in advance. In order to complete maintenance as quickly as possible, each party will cooperate with the other in such efforts under this paragraph. 5.a.
b) During the initial term or any renewal term under this Agreement, CyberLynk will monitor the CyberLynk Network to verify that Traffic is passing through the CyberLynk Network. CyberLynk will also monitor Customer’s connection to the Access Point. In the event of a Traffic disruption, CyberLynk will notify Customer of the disruption. Customer expressly agrees that CyberLynk does not own the co-located equipment and does not have the authority to repair or in any way service the equipment.
c) CyberLynk will provide a special emergency network service phone number at which either CyberLynk personnel or message service will be available for consultation.
d) In the event of failure of equipment connected to CyberLynk’s Network, the Access Point, or the Interconnection Point, CyberLynk may, but shall not be required to service equipment not installed or supplied by CyberLynk. Only manufacturer’s warranties shall apply to the servicing of such equipment. Customer may make special arrangements with CyberLynk to rent substitute equipment.
e) In order to facilitate network monitoring as described in Section 5.b hereof, Customer will provide CyberLynk with access to facilitate diagnosis of end-to-end connectivity problems.
f) As part of the Services, CyberLynk will supply one (1) FastEthernet connection (for a single interface) to CyberLynk’s LAN via CAT5 or CAT6 and an RJ45 connection. In the event Customer desires or requires more than one (1) connection to CyberLynk’s LAN, Customer must provide a hub, switch or router for the additional connections at the Customer’s expense.
Customer Relations
a) The Customer will be responsible for all communications with its clients with respect to the CyberLynk Network and the Global Internet. Customer shall promptly inform CyberLynk in writing of all Global Internet-related communications made to clients. Customer shall be responsible for screening the Traffic of its clients and end users, and blocking access to and/or from the Interconnection Point(s). Customer may charge separate and/or additional fees to its clients for the services provided under this Agreement.
Limitation on Services
a) This Agreement shall apply only to Traffic passing through CyberLynk’s Network and on to or from the Global Internet. Services involving protocols other than the Internet protocols are not covered by this Agreement. CyberLynk shall not carry any Traffic which would violate or conflict with any term or condition contained in any connectivity agreement between CyberLynk and any third party, any law, court order or government regulation.
b) CyberLynk reserves the right, but shall not be required to filter any Traffic originating from or delivered to Customer’s Internet Protocol address.
c) The Customer may filter any Traffic not originating from its Internet Protocol address.
Liability
a) CyberLynk shall not be liable to the Customer or its clients or any other third party for any loss or damage arising out of or relating to: (i) any failure in or breakdown of any facilities or Services hereunder, whatsoever the cause and however long it shall last; (ii) any interruption of service, whatsoever the cause and however long it shall last.
b) CyberLynk is not and shall not be responsible for the content of Traffic passing through public or private telecommunications line(s) wherever located. Customer agrees to indemnify and hold CyberLynk harmless in the event of any claim, action or suit brought forth or threatened as a result of the content of any Traffic passed through public or private telecommunications line(s).
c) Customer is solely responsible for network security on the Customer’s network including the server located at the Facility and telecommunication equipment connected thereto. All security events originating from Customer, its clients and/or end users are the responsibility of Customer, and inquiries will be passed on to a designated individual identified by Customer on Exhibit A.
d) CUSTOMER EXPRESSLY AGREES THAT NO REPRESENTATIONS ARE MADE REGARDING THE RESULTS, ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION PROVIDED THROUGH THE SERVICE(S). NEITHER CYBERLYNK NOR ITS EMPLOYEES, OFFICERS OR DIRECTORS SHALL BE LIABLE TO CUSTOMER OR CUSTOMER(S) OR ANY OTHER THIRD PARTY FOR THE CONTENT OF TRAFFIC PASSING THROUGH PUBLIC OR PRIVATE TELECOMMUNICATIONS LINE(S) WHEREVER LOCATED . CUSTOMER AGREES TO INDEMNIFY AND HOLD CYBERLYNK, ITS EMPLOYEES, OFFICERS AND DIRECTORS HARMLESS IN THE EVENT OF ANY CLAIM, ACTION OR SUIT BROUGHT FORTH OR THREATENED AS A RESULT OF THE RESULTS, ACCURACY, RELIABILITY OR CONTENT OF ANY TRAFFIC PASSED THROUGH PUBLIC OR PRIVATE TELECOMMUNICATIONS LINE(S).
e) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS EMPLOYEES, OFFICERS OR DIRECTORS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ECONOMIC LOSES INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS ARISING OUT OF OR RELATING TO THIS AGREEMENT, INTERRUPTIONS IN SERVICE, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, COMMUNICATIONS FAILURES, UNAUTHORIZED ACCESS TO FILES, DESTRUCTION OF FILES, RELIANCE OF ANY INFORMATION OBTAINED THROUGH THE SERVICE(S), THE SALE OF PRODUCTS OR SERVICES, OR THE PROVISION OF SERVICES WHICH MAY BE CONTEMPLATED UNDER THIS AGREEMENT.
F) NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL THE TOTAL LIABILITY, JOINT OR SEVERAL, OF CYBERLYNK, ITS EMPLOYEES, OFFICERS OR DIRECTORS FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO CYBERLYNK IN THE MONTH PRIOR TO THE CLAIMED INJURY OR DAMAGE.
Insurance
a) Customer must maintain general comprehensive liability insurance in an appropriate amount, but not less than $500,000.00. Customer shall identify CyberLynk as an additional insured with respect to any property damage caused by, resulting from or arising out of the operation of Customer’s equipment at Facility. Customer shall also provide CyberLynk a copy of the insurance policy prior to receiving Service(s) from CyberLynk.
Authorizations
a) All undertakings and obligations assumed hereunder by either party are subject to all applicable existing and future laws, rules and regulations, and are further subject to the issuance and continuance of all necessary governmental licenses, waivers, consents, registrations, permissions and approvals.
Force Majeure
a) Neither party shall be considered in default of its obligations under this Agreement should their execution be delayed by any act or cause which is beyond the reasonable control of the party performing the obligation.
Relationship of Parties
a) The parties to this Agreement are acting as independent contractors, and nothing contained herein shall be construed to create a partnership, joint venture or other agency relationship between the parties.
Regulatory Approval
a) The parties acknowledge that this Agreement, and any or all of the terms hereof, may become subject to regulatory approval by various local, state or federal agencies. Should such approval be required, the parties shall cooperate, to the extent reasonable and lawful, in providing such information as is necessary to complete any required filing.
Assignment
a) Neither party shall transfer or assign its rights or obligations under this Agreement or transfer by way of merger, consolidation, sale of all or substantially all of assets without the prior written consent of the other party which consent shall not be unreasonably withheld. Any attempt to transfer or assign rights or obligations shall be null and void.
Notices
a) All Service notices from CyberLynk to Customer shall be effective if hand delivered or sent via facsimile or electronic mail as specified below. All other notices shall be sent by certified or registered mail, return receipt requested, via the United States Postal Service. All notices shall be effective when sent.
Entire Agreement, Governing Law, Forum.
a) This Agreement represents the entire understanding between the parties regarding the subject matter hereof and supersedes all other prior and contemporaneous agreements, understandings, negotiations and discussions between the parties with respect to such subject matter. The recitals are expressly incorporated into this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, U.S.A., without regard to conflicts of laws thereof. Any dispute arising out of or related to this Agreement which cannot be resolved through negotiations conducted in good faith shall be settled by binding arbitration in accordance with the evidentiary rules then in effect in Wisconsin and other the laws of the State of Wisconsin, USA.
Severability
a) If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder shall not in any way be affected.
Amendment
a) This Agreement may be modified only by a written amendment signed by both parties.
No Third Party Beneficiaries
a) Nothing contained in this Agreement shall be deemed to confer any rights in any third party not a signatory to this Agreement.
Confidentiality
a) All confidential or proprietary information identified in writing as such at the time of disclosure and exchanged between the parties under this Agreement or during the negotiations preceding this Agreement and relating to the terms and conditions of this Agreement shall remain confidential. Neither party shall disclose such information to any third party without prior written authorization from the disclosing party.
b) Any announcement regarding this Agreement must be mutually agreed upon in writing by both parties, including the timing and wording of press releases and other announcements to third parties.
